CRITICAL ANALYSIS OF TRIPLE TALAQ : HUMANITY FINALLY CAME OUT OF THE TOXIC MARRIAGE
Updated: Jun 1, 2021
Author: Shivangi Srivastava, III year of B.A.,LL.B from Babu Banarasi Das University, Lucknow.
Human rights are associated with the idea of freedom, equality, secularism and progression. It’s pertinent to note that merely granting rights do not result in manumission. The darker side of human rights most apparently manifests itself in case of women, who are adversely affected by this. One such universalistic subject was ‘triple talaq’ that has thoroughly victimized the muslim women.
Triple talaq which means instant divorce, is a form of Islamic practice used by muslims in India to break the marital tie by pronouncing the word ‘talaq’ three times. It does not require a husband to give a valid reason for talaq nor did it required the physical presence of the spouses. The new law has saved the house of many women and their daughters. Finally, the judicial system has hit the nail right on the head by criminalizing this practice which has resulted in a great progress of the country. Not only it was wrong on humanitarian basis, but it was arbitrary and unconstitutional in nature.
This tyrannical practice has shattered and ruined many women and their households in past. India’s muslim neighbours are around 23 countries who have already banned divorce. As it has been rightly said:
“Those who don’t know history, are destined to repeat it.”
People from different religions keep practicing their old customs blind-foldedly without knowing the reason behind it’s existence and so was the case with this draconian practice. Muslim women have been socially, financially, mentally, physically and explicitly abused and exploited for the sake of religion and old customs.
Shayara Bano and several other batches of petitions as well as Supreme Court’s own suo moto PIL gave a start to the formation of new muslim laws. This article deals with the origin of triple talaq, quranic view, Shariat law, Uniform Civil Code, Shayara Bano’s case along with other leading case laws and the new muslim laws introduced in India.
What is triple talaq?
‘Talaq’ is an arabic word for divorce. Triple talaq also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah (an irrevocable divorce) was a recognized but disapproved mode of Islamic divorce, introduced by Omeyyads, in order to escape the strictness of law.
It commands neither the sanction of holy Quran nor the approval of holy Prophet Mohammed. It was sinful and irregular in nature.
According to this practice, a muslim man could legally divorce his wife by pronouncing talaq three times. The pronouncement could be oral, written or delivered by electronic means such as phone call, SMS, e-mail or through any social media platform. The man is not required to give any reason for such a divorce nor the presence or absence of wife is mattered at the time of pronouncement.
After a period of iddat (period of waiting), during which it was ascertained whether the wife is pregnant, the divorce becomes irrevocable. In this practice, a waiting period was required before each pronouncement of talaq, during which reconcillation was attempted. But paying no heed to the requisites of this divorce, it had became common to make all three pronouncements in one sitting.
Divorce done in this manner does not allow a divorced woman to remarry her divorced husband unless she first married another man, a practice called nikah halala. Until she is remarried, she retained the custody of male toddlers and prepubescent female children. Beyond these restrictions, the children came under the guardianship of the father. Muslim men took various advantages of this invalid practice and lives of many muslim women have been put at stake.
The practice of talaq-e-biddat is said to have been around since the period of Caliph Umar, more than 1400 years ago. Hazrat Umar on account of certain peculiar situation permitted this practice. It is considered by the Islamic jurists as an innovation within the fold of shariat and the past events tell that there was no reasonable ground for starting this practice.
When the Arabs conquered Syria, Egypt, Persia, etc, they found women there much more better in appearance as compared to Arabian women and hence they wanted to marry them. But the Egyptian and Syrian women insisted that in order to marry them, they should divorce to their existing wives instantaneously by pronouncing three divorce in one sitting.
The condition was readily acceptable to the Arabs because they knew that in Islam divorce is permissible only twice in two separate period of tuhr (period of wife’s parity) and it’s repetition in one sitting is unislamic, void and shall not be effective. In this way, they could not only marry these women but also retain their existing wives. This fact was reported to the second Caliph Hazrat Umar.
The Caliph Umar then in order to prevent the misuse of the religion by the unscrupulous husbands decreed that even repetition of the word talaq, talaq, talaq at one sitting would dissolve the marriage irrevocably. It was however a mere administrative measure of Caliph Umar to meet an emergency situation and not to make it a law permanently. But unfortunately the Hanafi Jurists later on at the strength of this instant administrative order of second Caliph declared this form of divorce valid and also pave religious sanction to it.
Law of divorce in the light of Quran
Holy Quran, the paramount source of Islamic Jurisprudence, never established that the three divorces pronounced in a single breath would have the effect of three separate divorces. Triple Talaq does not exist in Quran.
To this effect the relevant verse of the Quran can be relied upon:- “A divorce is only permissible twice; after that the parties should either hold together on equitable terms or separate with kindness.” As it is clear by the apparent meaning of the verse that even after two pronouncements of divorce on two different occasions, the chances of retaining the marriage is possible before the pronouncement of third divorce on separate occasions.
Virtually, this third pronouncement of divorce makes it irrevocable, thereby bringing the marriage to an end. Thus, the instant verse (II : 229) establishes that in Quran there is no trace that the ‘three divorces’ at one occasion would be treated as irrevocable or a valid divorce. In Islamic law, it is just based upon the belief that the husband has the right to reject or dismiss his wife with good grounds. Other references has been taken from the sayings of Prophet Mohammad. Trilpe Talaq was not there during the lifetime of Prophet Muhammad (PBUH) and he was strongly against this practice.
Here is what he spokes of biddat:- Prophet said, which was narrated by A. Hurraira, “the best person amongst you is the one who is best to his wife.” (AI Tirmidhi, 628). In other Hadees narrated by Ibn Musnad, Prophet Mohammad said, “there are three things which are essential for happiness:- (1) a righteous wife (2) a spacious home and (3) a sound means of transportation. (Musnad, 1:168).
The interpretation of these Hadees includes that a wife and a marriage bond should be intact. Holy Quranic verses such as chapter 2, 4 and 65 gives a lot of importance to marriage., clearly stating that Muslim men have to wait till the period of iddat ends, thereby, disapproving the talaq (divorce) in one go. Therefore to dissolve the marriage the parties have to go through reconciliation and every hard ditch effort to keep it alive, if all of this fails, only then recourse be taken to divorce.
“Bad laws are the worst sort of tyranny”
Shariat law, also known as classical Islamic law, has been derived from the Islamic religious sources i.e., Quran and Hadith. All the Muslims India are governed by the Muslim Personal Law (Shariat) Application Act, 1937, which was passed by the British Government. Family disputes were handled in Sharia courts, presided over by a judge (qadi).
These laws are not applicable to Muslims who are married under the Special Marriage Act, 1954. Shariat law recognized triple talaq, which allows a husband to divorce his wife by pronouncing talaq three times. Unlike other forms of divorce it does not observe the waiting period and it irrevocably terminates the marriage. Some legal schools considered it as a “major divorce” while others classified it as a “minor divorce.”
Talaq-e-biddat, which was a pre-islamic custom, was considered to be a disapproved form of divorce, because it was against the principles of Quran. As the “Allah” also says that ‘Biddat in Islam is not permissible.’ [Holy Quran 5:4(2)]. Earlier, based on administrative laws and arbitrariness of the rulers, these orders were made temporarily to meet an emergency situation and not with the intention of making it a law permanently.
But unfortunately the Hanafi jurists later on, at the strength of this administrative order declared this form of divorce valid and also pave religious sanction to it. As a result, it became common and was followed by Muslim men openly under Shariat law.
First woman to move the Supreme Court over triple talaq law :- Noorbeena Rasheed
Rasheed, Kerala lawyer, has moved the Supreme Court against the criminalization of the triple talaq practice in July, thereby, becoming the first Muslim woman to do so since Parliament passed the legislation in 2019. She is also the national general secretary of the Indian Union Women’s League (IUML).
She filed the petition to the centre calling the law disproportionate, excessive and stringent in nature and sought the court to declare it unconstitutional. In her petition, she claimed that “The protection of women cannot be achieved by incarceration of husbands.”
Also it questioned the provisions of the law that allows relatives of the women to file complaints. The petition stated that :- “This provision is highly detrimental not only to the wife but also to the marital relationship.” “Welfare-oriented legislation would promote amicable resolution of matrimonial disputes rather than criminalise marital discord, particularly criminalization of only one community… the intent behind the act is not abolition of triple divorce, but punishment of Muslim husbands,” her petition said.
In August 2017, a five judge bench of the Supreme Court had declared the practice of talaq-e-biddat as unconstitutional.
Leading Cases of Instant Divorce
Several women who have been divorced on phone, through letters or through any social media platform had argued that the practice was “unlawful” and “arbitrary” and they appealed the apex court to end it.
Ishrat Jahan from Howrah, West Bengal, was divorced by her husband over a phone call. In April 2015, Murtaza, her husband called from Dubai, said “talaq, talaq, talaq” and disconnected. He had allegedly married another woman and took away their four children. Ms. Jahan wanted her children back and maintenance from Murtaza. She appealed the court for justice and fought till the end.
Gulshan, from Rampur, Uttar Pradesh received a divorce notice on a Rs 10/- stamp paper when she was visiting her parents in 2015. Ms Parveen also states that she was subjected to domestic violence over dowry. She refused to accept the notice, after which her husband approached a family court, asking for dissolution of marriage based on the talaqnama (divorce notice).
Aafreen was married in 2014 through a matrimonial portal. After two-three months of her marriage her in-laws started harassing her both mentally and physically over dowry. Later, the condition became worse and they started beating her and asked her to leave the house. In September, 2015 she went to her parent’s home, where she received a letter via speed post announcing a divorce. Enraged by the unfair and unacceptable behaviour of her husband, she filed a petition in the Supreme Court, seeking the court’s intervention.
Atiya, married in 2012, was also divorced on a piece of paper. She has two daughters aged four and three. “Talaq given to me is not justified. I need justice as I have to raise my daughters,” said Ms Sabri. She approached the Supreme Court challenging her divorce.
Woman Behind The Triple Talaq Fight
Shayara Bano, since her student life was against anti-social customs like triple talaq and nikah halala. These practices became a part of her life when she got married to Rizwan Ahmed. After few months her in-laws and husband started torturing and humiliating her over dowry. In October 2015, 36-year-old Shayara Bano received an instant divorce by her husband via speed post, a year after which she approached the Supreme Court. Ms Bano’s husband Rizwan Ahmed, a property dealer in Allahabad, also took away her two kids. She asked the court to declare talaq-e-biddat, polygamy and nikah halala (which involves the woman marrying someone else, consummating the marriage and then getting a divorce, to remarry her first husband) illegal and unconstitutional as it is in violation of Articles 14 (equality before law), 15 (non-discrimination), 21 (right to live with dignity) and 25 right to freedom of conscience and religion) of the Indian Constitution. She also alleged that her in-laws forced her to have six abortions, because of which she has suffered much physical and mental stress. She was often threatened by the members of All India Muslim Personal Law Board to withdraw the case stating that she was going against Islam.
Despite this discouragement, with her indefatigable spirit and indomitable vigor, she kept fighting. Based on her petition, PM Modi filed an affidavit against triple talaq. And in August 2017, in a landmark verdict, the Supreme Court struck down the practice by a majority of 3:2, declaring it was unconstitutional. The Modi Government drafted The Muslim Women (Protection of Rights on Marriage) Bill, 2017 which was passed in Lok Sabha in December. The final verdict, criminalizing triple talaq, came two years after Shayara Bano approached the top court.
“If you knock long enough and loud enough at the gate, you are sure to wake up somebody.”
-Henry Wadsworth Longfellow
Even after Supreme Court’s judgement in August, 2017 more than 100 cases of instant divorce were filed in the country. Seeing the same pathetic condition of the Muslim women a new bill was introduced in the Parliament, which, followed by other changes, has finally lead to the criminalization of ‘triple talaq.’
The Muslim Women (Protection of Rights on Marriage) Bill, 2017
After 100 more cases of instant triple talaq were filed in the country, the Government formulated and introduced a bill in the Parliament. The bill was made in order to make triple talaq completely illegal, void and with punishment up to three years of imprisonment of the husband. On 28 December, 2017 the Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha. Many parties and communists opposed the bill, calling it arbitrary and faulty in nature, while it was strongly supported by the INC (Indian National Congress).
Muslim Women (Protection of Rights on Marriage) Ordinance, 2018
On the grounds that practice of instant triple talaq was continuing unabated despite the SC striking it, the government issued an ordinance to make the practice illegal and void.
The provisions of the ordinance are as follows:-
Instant triple talaq remains cognizable with a maximum of three years imprisonment and a fine.
Only complaint with the police by the wife or her blood relative will be recognised.
The offence is non-bailable i.e. only a Magistrate and not the police can grant bail. Bail can be granted only after hearing the wife.
Custody of the minor children from the marriage will go to mother.
Maintenance allowance to the wife is decided by the magistrate.
The ordinance was cleared by the President on 19 September 2018.
Muslim Women (Protection of Rights on Marriage) Bill, 2018
As the triple talaq ordinance of 2018 was to expire on 22 January 2019, the government introduced a fresh bill in the Lok Sabha on 17 December 2018 to replace the ordinance.
The provisions of the bill are as follows:-
All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
Instant triple talaq remains cognizable offence with a maximum of three years' imprisonment and a fine. The fine amount as decided by the magistrate.
The offence will be cognizable only if information relating to the offence is given by the wife or her blood relative.
The offence is non-bailable. But there is a provision that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with reasonable grounds for granting bail.
The wife is entitled to subsistence allowance. The amount is decided by the magistrate.
The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the Magistrate.
The offence may be compounded (i.e. stop legal proceedings and settle the dispute) by the Magistrate upon the request of the woman (against whom talaq has been declared).
The bill was passed by Lok Sabha on 27 December 2018. However, the bill remained stuck in the Rajya Sabha due to the opposition's demand to send it to a select committee.
The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019
As the triple talaq ordinance of 2018 was to expire and also because the bill could not be passed in the parliament session, the government repromulgated the ordinance on 10 January 2019. On 12 January 2019, the president of India Ram Nath Kovind approved the ordinance of 2019.
Legal Ban on Triple Talaq
“Is it fair for a man to say “talaq” thrice over the phone and a Muslim woman’s life gets ruined? This issue shouldn’t be politicised”
- Narendra Modi
The Muslim Women (Protection of Rights on Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019 became law on 31 July 2019, replacing the earlier ordinance, when the bill was passed by both houses of the legislature, Lok Sabha and Rajya Sabha, and was notified by the President of India in the official gazette, and thus became an Act of Parliament. The Act has 8 sections.
Provisions of the Act
The act statutorily provides:-
Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
An offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
An offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
No person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.
Standing for your rights and leading a respectful life is the fundamental right of every individual and it should not be compromised in the name of religion or gender. Triple talaq was a tryst with tyranny, impregnated with torture, trauma and tormentation. Owing to the arbitrariness and patriarchal nature of this practice and looking at the pathetic condition of the Muslim women, India has finally banned it.
Many Muslim majority countries like Saudi Arabia, Morocco, Pakistan and Afghanistan have banned this practice long time ago. A survey conducted by an organization found that 92% of Muslim women favoured a ban on this practice and this decision proved to be legal victory for them. One of the most important conclusion that can be drawn through the abolishment of triple divorce is that no Muslim woman will have to face any such discrimination and injustice in their life in the upcoming future. Patience and die hard spirit of Shayara Bano along with four other women have made it possible. Talaq, Talaq, Talaq – humanity finally came out of the toxic marriage.